It's finally happened. Viacom has sued Google for $1 billion in damages for copyright infringement over videos posted on YouTube. This case will be a great test for exactly how powerful the DMCA Safeharbor protections actually are.
Section 512(c) of the DMCA seems to free GooTube from liability for "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by [YouTube]" if it sets up a notice and takedown system. Such a system places the burden on the content owners to inform YouTube of copyright violations, which YouTube must then take down. Viacom recently demanded that YouTube remove 100,000 allegedly infringing videos, and I would assume YouTube has complied with the takedown requirements (though many of those videos were clearly not Viacom owned content).
So it if YouTube is complying with the notice and takedown procedures, the 512 safeharbor should protect it right? Not necessarily.
There are two other requirements that YouTube must comply with to get protection under the safeharbor.
First, it must not have (1) actual knowledge of the infringement, (2) awareness of "facts or circumstances from which infringing activity is apparent," or (3) if it does have either of these, it must remove the infringing materials. I haven't seen the complaint, but from the articles I've read, it sounds like Viacom is arguing that YouTube knows or should know that infringement is occurring on the site. But how much knowledge is required here? Is it enough for YouTube to know that this is generally happening, or does it need to know that a specific video is infringing? If the safeharbors are to be at all useful in protecting service providers, the latter must be the case. Otherwise, YouTube would have to proactively police all the content on its system, which is a heavy burden (and one the safeharbors seemed designed to remove). Viacom wants YouTube to actively seek out infringing materials using filtering software, but if Section 512 does anything at all, it shifts the burden from the service provider to the content owners. Viacom is in the better position to police the materials, since Viacom presumably knows what content it owns rights to, whereas YouTube can't know (without the content owner's help) whether a given clip is copyrighted or not.
Second, the safeharbor requires that YouTube "not receive a financial benefit directly attributable to the infringing activity" if YouTube "has the right and ability to control such activity." But how "direct" is direct? Does the fact that videos bring people to the site, thus increasing the audience for banner ads, count as "direct", even if the ads are not on the video pages themselves? Read broadly, this could mean any service provider engaged in a for profit venture cannot qualify for the 512 safeharbor. But again, that would relegate the safeharbor to protecting a tiny portion of service providers. "Directly attributable" must require a closer nexus between the infringing activity and the financial benefit. YouTube has avoided such a direct benefit by keeping banner ads off the video pages.
Whether the court interprets these requirements broadly or narrowly will determine whether the DMCA Safeharbors are to have any relevance in the future of technological innovation. If Viacom prevails, the Safeharbor will essentially be gutted, leaving service providers in a murky realm of liability the Safeharbor was designed to free them from in the first place. It seems to me that GooTube is on solid legal ground, but we'll see if the courts agree.
Date published: March 13, 2007